We would like to draw attention to a liability situation and potential claims for compensation against railroad infrastructure companies (RIUs) that have only taken on a clear shape in case law and practice in recent years and have thus gained significance for railroad undertakings (RUs) and other access permit holders in particular.
- RUs and RIUs are linked to each other via so-called train path usage contracts. From a legal perspective, a (train) path is the portion of an RIU’s railroad infrastructure capacity that is required for the RU’s train to run between two locations at a certain time. In 2021, the Federal Court of Justice ruled that the train path usage agreement is to be treated as a lease agreement. The transfer of use of the leased train path to the RU as lessee is an essential contractual obligation of the RU as lessor of the train path. The limitations of liability contained in the terms of use of the dominant EIU in Germany, DB InfraGO AG (formerly DB Netz AG), were deemed invalid. It must be possible to use the train path at the agreed times. Otherwise, there is a rental defect and thus a claim by the RU for compensation for the damage caused by the non-contractual availability of the train path.
- In day-to-day practice, train path failures and delays occur regularly. The affected railway undertakings have to bear the consequences and are also exposed to claims from their customers. Due to the state of the railroad infrastructure, which is in need of renovation, and the legally mandated and widely discussed corridor and general renovations, further significant restrictions are to be expected in the near future.
- RUs and other train path applicants are advised not to simply accept restrictions on the train paths ordered and allocated, but to examine and enforce claims for compensation against DB InfraGO AG in each individual case. This applies equally to spot and regular services.
The contact persons in our Rail competence team will be happy to answer your questions and assist you in assessing possible claims for compensation.
